Kelley's Air Force punishment exposes flaws with military justice, observers say
By ALEX HORTON | The Washington Post | Published: November 13, 2017
Before Devin Kelley murdered 26 people, including children, in Sutherland Springs, Texas, the Air Force knew he should be kept far from the reach of a gun.
But the service failed to report his domestic violence conviction to the FBI, a move that would have restricted him from buying and owning firearms.
Kelley spent a year in jail for crushing his young stepson's skull, assaulting his wife and making other threats, crimes for which he received a bad-conduct discharge from the military - one step below a dishonorable discharge, the harshest title that can be applied in separating those who break the law while in uniform.
Now, in the wake of last Sunday's tragedy at Sutherland Springs' First Baptist Church, some military justice experts are questioning why, given the severity of his past wrongdoing, Kelley was not given a dishonorable discharge. The military, they say, is far better at reporting those cases to federal law enforcement for inclusion in the databases used to conduct criminal background checks.
The relative leniency has puzzled experts and cast light on how the military administers discipline through its discharges. Some say it's a wildly uneven system that, on one hand, under-punishes serious offenders like Kelley while, on the other, over-punishes others with extenuating circumstances tied to their violations, including post-traumatic stress.
Kelley's case illustrates an "archaic, ineffective sentencing system" - and the military's refusal to reform it, said Don Christensen, a former Air Force chief prosecutor.
When Kelley was court-martialed, a jury of rank-and-file airmen - not a military judge - was chosen to hand down his sentence. Jurors, Christensen said, typically deliver lighter penalties than a judge would, and Kelley's crimes probably warranted tougher punishment.
"Sentences typically skew light in crimes of violence than what you see in civilian world," he added, calling the appointment of a jury in a case such as Kelley's unusual and "disturbing." Severe child abuse carries a maximum sentence of five years in the military justice system, similar to a first-time offender busted for cocaine use, he said.
Consider, by contrast, the case of Air Force Maj. Joseph Pugh, who was convicted of dereliction of duty for eating a granola bar containing hemp oil that later showed up in a drug test. He was sentenced to a dismissal from the service, the equivalent of a punitive discharge for military officers. Pugh's sentence was overturned Tuesday, after an appeals court found the guidelines for marijuana prohibition to be overly broad when considering commercially available food products.
"It was a harsher discharge than what Kelley got for beating his stepson and his wife," Christensen said about Pugh's case. Christensen now serves on the board of directors for Protect our Defenders, an advocacy group for military personnel who are the victims of sexual assault and rape. Many of those cases are under-punished, too, he said.
This apparent inconsistency in applying punishment goes back decades, advocates say. More than a half-million former troops have other-than-honorable discharges, according to data maintained by the Department of Veterans Affairs. Many resulted from administrative discharges handed down by commanders, not a judge or jury. The Pentagon has promised to review such discharges dating to the Vietnam War and overturn those in which individuals were unfairly separated.
"The fact is Kelley, other than his year of incarceration, received nearly the same treatment as people who have never committed a serious crime," said Kristopher Goldsmith, assistant director of policy for Vietnam Veterans of America. Goldsmith, an Iraq War veteran, was kicked out of the Army after he attempted suicide the day before his second deployment.
The decision to separate him, rather than address the issues for which he feels the military was responsible, has prohibited Goldsmith from obtaining VA medical care, he said, adding, "I don't think most Americans think someone like Kelley, and someone who smoked a joint after they got home from Iraq, should receive the same punishment."
Defense Secretary Jim Mattis last week ordered an investigation into how the Air Force failed to provide the FBI with information about Kelley and a review of such procedures across the military. The problem has been the subject of Pentagon investigations dating back at least 20 years.
But what remains to be seen is whether there will be a similar review of the military's sentencing guidelines for jurors. Christensen, the former chief prosecutor, said that the wide range of potential sentences - from no punishment to years in prison and punitive discharges - can make it difficult for jurors to gauge what's appropriate.